February 15, 1990
JXM MA-X
ATTORNEY G,CNERAL
Hon. James Warren Smith, Jr. Opinion No. JR-1143
Frio County Attorney
P. 0. Box v Re: Whether a county clerk
Pearsall, Texas 78061-1138 must make available to the
public tapes of commissioners
court meetings (RQ-1835)
Dear Mr. Smith:
In your letter requesting an opinion you state the
following facts:
1. The county clerk makes audio tape
recordings of commissioners court
meetings.
2. The county clerk maintains that these tape
recordings are her "private notes" and are
thus her private property.
3. The county clerk uses. these tape
recordings to aid her in preparing the
minutes of the commissioners court.
4. The commissioners court does not require
the clerk to tape record either public or
executive sessions of the court.
you ask whether such tape recordings must be made
available to the general public.
The county clerk is the px pfficig clerk of the
commissioners court and, as such, is required "to record in
suitable books the proceedings of each term of the court."
Local Gov't Code 5 81.003(b).
Section 3(a) of the Open Records Act, article 6252-17a,
V.T.C.S., provides:
All information collected, assembled, or
maintained by or for governmental bodies,
exceDt in thoe
s situations where‘ the
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Honorable James Warren Smith, Jr. - Page 2 (JM-1143)
governmental bodv dons not have either a
iaht of access to or owner hiD of th
&iggi&
in connection
official business is public information
[unless within a specified exception].
iEmphasis added.)
The underlined.language in the above-quoted provision
was added to the statute in 1989. Acts 1989, 71st Leg., ch.
1248, 5 9, at 5023. It exempts materials from coverage by
the Open Records Act in situations where materials are
produced for a governmental body but the governmental body
has neither ownership in nor a right of access to the
materials. This exemption is a codification of principles
enunciated in previous open records decisions. See. e.o.,
Open Records Decision No. 445 (1986).
You do not state whether the tapes or the tape recorder
are county property or the personal property of the county
clerk. However, assuming that they are the personal
property of the county clerk, she certainly has access to
them in her official capacity as clerk of the commissioners
court.
In Open Records Decision No. 225 (1979), the attorney
general considered whether handwritten notes of meetings
made by the secretary of a governmental body were subject to
the Open Records Act. In'that decision, as here, the
materials in question were not of the type of personal notes
that have been held to be exempt frbm disclosure. The tape
recordings in question here are used by the county clerk in
the performance of her duties as clerk of the commissioners
court. The analysis in Open Records Decision No. 225 and
the authorities cited therein are apposite here.
Moreover, the minutes of a commissioners court meeting,
being the medium through which the court speaks and acts, is
exactly the kind of record the Open Records Act is intended
to make available so that citizens may have "full and
complete information regarding the official acts of
those who represent them." V.;l.C.S. art. 6252-17a, § 1;
Open Records Decision No. 60 (1974). Tape recordings
produced during a meeting of a governmental body as an aid
in the preparation of accurate minutes have been expressly
found to be subject to the provisions of the Open Records
Act. Open Records Decision No. 32 (1974).
Therefore, audio tape recordings of commissioners court
meetings that are made by the county clerk as an aid in the
p. 6041
Honorable James Warren Smith, Jr. - Page 3 (JM-1143)
h
preparation of minutes are subject to the provisions of' the
Open Records Act. The fact, taken alone, that such
recordings may be the personal property of the county clerk
does not except them from the Open Records Act.
SUMMARY
Audio tape recordings of commissioners
court meetings that are made by the county
clerk as an aid in the preparation of minutes
are subject to the provisions of the Open
Records Act. The fact that such recordings
may be the personal property of the county
clerk does not except them from the Open
Records Act.
JIM MATTOX -
;-. Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOWE STEANLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
P
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